Is it ok for my dad to access my mums account if she's in a care home?

zAndy1

My mum is currently in a care home suffering from dementia and incapable of making decisions for herself. There is no power of attorney in place. My dad has access to her savings account in her name and also the current account in joint names. Is it ok for my dad to access my mums account e.g. transfer money from it to the joint account or withdraw money from it using an ATM card to pay for things like care home bills or to pay for the cost of a court of protection order or anything like that? It's a very messy situation, my dad is also showing early signs of dementia , he's very forgetful and couldn't for example remember giving me the money to pay the first care home bill (it was easier for me to pay it as my dad won't use online banking and the care home wanted paying by bank transfer). Given his situation I assume I'm going to have to apply for legal authority over mums finances and for power of attorney over my dads. I just wanted to check whether my dad is doing anything illegal accessing my mums account before we've been granted legal authority over her finances? 

Torry_Quine

Your dad or indeed anyone else should not be accessing any account solely in her name. 

mab3000

In terms of legality, if all he is doing is taking money out of her savings account to pay for her care bills or anything related to her managing her money, then it wouldn’t be something that is illegal.  

However, you really do need to put something in place to get official authority over her financial affairs. If there was fraud on her account for example, the bank may refuse to pay any funds back, as they may argue that she has compromised her details by giving someone else her PIN number. Also, if the banks fraud systems suspect any unusual activity on the account, or notice it isn’t her using the account,  and they  put safeguard blocks on it, you are then going to have problems as your mum will be incapable to talking to the bank to discuss the account and get the blocks removed. 

Getting POA for your fathers affairs is a good idea too. 

IanManc

mab3000 said:

In terms of legality, if all he is doing is taking money out of her savings account to pay for her care bills or anything related to her managing her money, then it wouldn’t be something that is illegal.  

The above statement is wrong. It is unlawful to take money from an account in someone else's sole name where they have lost mental capacity unless authority has been given by means of a Power of Attorney or by operation of an order from the Court of Protection, whatever the money is being spent on.

Even though he is her husband, and is spending the money on her care home fees, your father is acting unlawfully in taking and using your mother's money in the way he is doing.

daveyjp

If spouses were allowed to access the private accounts of the person they were married to to pay for their care there would be no need for POAs!

tempus_fugit

IanManc said:

mab3000 said:

In terms of legality, if all he is doing is taking money out of her savings account to pay for her care bills or anything related to her managing her money, then it wouldn’t be something that is illegal.  

The above statement is wrong. It is unlawful to take money from an account in someone else's sole name where they have lost mental capacity unless authority has been given by means of a Power of Attorney or by operation of an order from the Court of Protection, whatever the money is being spent on.

Even though he is her husband, and is spending the money on her care home fees, your father is acting unlawfully in taking and using your mother's money in the way he is doing.

This. I, for example, have made clear to my wife that in the event of my mental incapacity she may access my accounts as necessary, but the problem is once capacity has been lost then that person can't be asked if they actually gave their permission. That's what a Power of Attorney is for and we have ours set up and ready to go when needed. Everyone should get POAs done for this reason.

elsien

If your mother no longer has capacity to make an LPA then someone needs to apply to the court of protection for deoutyship.
Any third party bank mandates cease to be effective when the person loses capacity. LPA//deputyship is then the only lawful mechanism to access someone else’s account. Using online banking and known passwords (for example) leaves your father open to allegations of theft and safeguarding enquiries, 
He/you can apply to the DWP to be her appointee for her pension and attendance allowance (if still eligible) otherwise you may need to consider a deferred payment agreement. 

mab3000

IanManc said:

mab3000 said:

In terms of legality, if all he is doing is taking money out of her savings account to pay for her care bills or anything related to her managing her money, then it wouldn’t be something that is illegal.  

The above statement is wrong. It is unlawful to take money from an account in someone else's sole name where they have lost mental capacity unless authority has been given by means of a Power of Attorney or by operation of an order from the Court of Protection, whatever the money is being spent on.

Even though he is her husband, and is spending the money on her care home fees, your father is acting unlawfully in taking and using your mother's money in the way he is doing.

I disagree. It’s not the right thing to do, and getting official authority on the account is.  But I think it would be hard to prove that getting the money out to pay for care home bills would be an illegal act. If money was being taken out for other things, then yes that would very well be argued as being illegal. 

If you go to a bank with a care home bill for example, for someone else in this situation where the bill really needs to be paid in a time sensitive situation, but there is no authority on the account, the banks can and sometimes do take the decision and pay the care home bill without authority from the customer. It’s a risk the bank takes, but in certain situations it’s the right thing to do. So is this illegal? 

IanManc

mab3000 said:

I disagree. It’s not the right thing to do, and getting official authority on the account is.  But I think it would be hard to prove that getting the money out to pay for care home bills would be an illegal act. If money was being taken out for other things, then yes that would very well be argued as being illegal. 

If you go to a bank with a care home bill for example, for someone else in this situation where the bill really needs to be paid in a time sensitive situation, but there is no authority on the account, the banks can and sometimes do take the decision and pay the care home bill without authority from the customer. It’s a risk the bank takes, but in certain situations it’s the right thing to do. So is this illegal? 

You have posted incorrect information on the lawfulness of the father's actions, and instead of accepting that you are wrong, as several posters have explained, you are doubling down on your woefully bad advice.

As far as your first paragraph is concerned, the possibility that what the father is doing might be "hard to prove" is no justification in law for his actions whatsoever. And his actions are unlawful whatever he's spending the money on. He has no right to remove money from his wife's sole account at all in the current situation.

As far as your second paragraph is concerned, yes, it is unlawful for the bank to remove money from someone's account in the circumstances you suggest as there is no lawful authority for them to do so, and they know that. I do not accept that a bank would ever act in the way you assert. You have simply made this up. It is not a "risk the bank takes", because a bank won't do it.  

You are simply attempting - by talking about proof and making things up about banks - to muddy the waters when you're just plain wrong.

Where someone has lost mental capacity, the only lawful means by which you can remove money from their sole accounts is under the authority of a Power of Attorney or a Court of Protection order giving Deputyship to someone. There are no grey areas about proof of what you might be able to get away with or about what you're spending the money on.

Daliah

Information about Deputyship: https://www.gov.uk/become-deputy/apply-deputy

zAndy1

Thanks for the replies everyone, it's a messy situation but yes I agree the legality of accessing my mums account cannot be questioned and therefore we need to do something about that. The only issue I'm having really is whether my dad is capable enough to be deputy / appointee , well put it this way, he gave me the money to pay the care home bill which I duly did. I then gave him the carehome bill and told him I'd paid it to which he replied 'so I owe you £nn.nn then' to which I obviously reminded him he'd already given me the money to pay it but he couldn't recall doing that. So I think I'm going to have to apply for the DWP appointee or court of protection order (presumably even a DWP appointee wouldn't give us authority to access her account though?). I told my dad he needed to sort this out ages ago but he never listened and now it's a right mess of a situation unfortunately...
By the way, is there any question about the legality of my dad accessing the joint account given my mum's situation and lack of capacity?